Withdrawal Of Plea Using Penal Code 1473
Penal Code 1473.7 allows a person no longer imprisoned to vacate a conviction or a sentence. Undocumented person who are in danger of deportation may file a motion in order to clear their record of criminal convictions.
If the conviction is overturned, the criminal case starts again. Undocumented defendants will face the original criminal charges and will need to fight the case or enter a plea that does not have immigration consequences.
Reasons To Withdraw A Plea
Under Penal Code 1473.7, there are 2 reasons to withdraw a guilty plea:
- If there was a prejudicial error during proceedings that damaged the person’s ability to meaningfully understand, defend, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere; or
- New evidence of innocence exists and requires the withdrawal of a plea.
Failure to Understand Immigration Consequences
If the prosecution opposes the Penal Code 1473.7 motion, they will need to provide evidence that the defendant understood the immigration consequences at the entry of plea. This evidence may include a signed waiver of constitutional rights, a probation or sentencing order, a transcript or recording of the entry of plea, and declarations or testimony from witnesses.
A plea entered after January 1, 2017 can be withdrawn due to ineffective assistance of counsel. To do so it must be shown:
- That counsel’s performance was deficient in that it fell below an objective standard of reasonableness; and
- That he or she was prejudiced by that deficient performance
A plea entered before January 1, 2017 can only be withdrawn if the defendant asks his or her attorney about the immigration consequences of a plea and is given incorrect immigration advice. (People v. Landaverde).
When To File A Motion Under Penal Code 1473.7
The motion cannot be filed until:
- The party receives a notice to appear in immigration authorities that asserts the conviction or sentence as the basis for removal.
- The date a removal order based on the conviction or sentence becomes final.
The motion shall be filed with reasonable diligence after the later of the above dates.
The motion must also be filed without undue delay from the date the moving party discovered or could have discovered the evidence that provides the reason for the withdrawal of the plea.
After Filing The Motion
The court clerk provides a hearing date when the motion is filed. At the hearing the Judge will decide whether or not to overturn the conviction. If the conviction is reversed, the defendant still faces criminal charges and will need to enter a plea or fight the case.
Entering An Immigration-Neutral Plea
In order to avoid deportation, a non-citizen defendant must enter a plea that does not have immigration consequences. One option is to plead to a charge or charges that are immigration-neutral but give the court and prosecution equivalent convictions and sentences.